SZTVU v Minister for Immigration and Border Protection
[2015] FCCA 1620
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1620 |
| Catchwords: MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – whether the Tribunal failed to provide that Applicant a fair hearing – consideration of WZAPN issue – no reviewable error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 424A, 425 Racial Discrimination Act 1975 (Cth), s.10 |
| Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 WAIJ v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZTVU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 273 of 2014 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 15 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitor for the Applicant: | Ms M Byers |
| Counsel for the First Respondent: | Mr B O'Donnell |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
The Application, as amended, be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 273 of 2014
| SZTVU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed in this Court on 6 February 2014 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1314291, a decision of Tribunal Member A. Cranston dated 8 January 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed on 21 March a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.
The applicant was granted leave on 4 March 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely. The applicant filed:
a)An amended application on 13 June 2014;
b)The affidavit of Michaela Byers, affirmed 18 June 2014 and filed on the same day (the “First Byers Affidavit”);
c)Written submissions on 8 July 2014;
d)A further amended application on 15 July 2014; and
e)The affidavit of Michaela Byers, affirmed 15 July 2014 and filed on the same day (the “Second Byers Affidavit”).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a citizen of Sri Lanka, of Tamil ethnicity, who applied for a Protection visa on 29 April 2013 (CB 1-58). His claims to refugee status relate to fears of persecution, on the basis of race and imputed political opinion, from the Sri Lankan army and paramilitaries supporting it (and also, perhaps implicitly, from remnants of the Liberation Tigers of Tamil Eelam (“LTTE”), arising out of his family’s past interactions with the LTTE, the Sri Lankan Army, and the Indian Army when it was in Sri Lanka) (CB 49-57).
On 23 September 2013 a delegate of the Minister declined to grant the applicant a Protection visa, rejecting the applicant’s claims on credibility and plausibility grounds (CB 122-146).
On 26 September 2013 the applicant applied to the Tribunal for review of the delegate’s decision (CB 147-154). The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments (CB 158-161), which he attended on 4 December 2013 (CB 168, 219). The applicant’s agent also provided the Tribunal with extensive written material before the hearing, on 2 December 2013 (CB 170-218). Among this material was a letter from the German Red Cross of 2 September 2008 (the “Red Cross Letter”), which was also before the delegate (CB 72-3, 178-9).
On 6 December 2013, after the hearing, the Tribunal wrote to the applicant seeking his comment on certain inconsistencies in his evidence (CB 222-224). The applicant’s agent responded on 2 January 2014 (CB 232-261). Included in that response was a psychological assessment report on the applicant by an officer of the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”), dated 28 June 2013 (the “STARTTS Assessment”) (CB 246-261).
On 8 January 2014, the Tribunal decided to affirm the delegate’s decision (CB 266-293). The Tribunal rejected the applicant’s refugee claims on the basis of his credibility, arising out of inconsistencies in his evidence; as well as upon the inherent plausibility of his claims, including in the context of independent country information.
Current Proceedings
The applicant, with the consent of the Minister, filed and relied on a further amended application pleading the following ground of review:
1. The RRT failed to provide the Applicant a fair hearing in circumstances where:
a) An application for an adjournment was refused in circumstances where the Applicant’s advisors were not prepared for the hearing;
…
c) A psychological report led on behalf of the Applicant was only considered in respect of the Applicant’s general credibility and not in regards to its bearing on the Applicant’s ability to participate in the hearing; and
d) There was no regard to the evidence led by the Applicant’s migration agent that the Applicant had intellectual limitations.
Applicant’s Submissions
The applicant submits that in the Tribunal below erred in failing to grant an adjournment to the applicant, in circumstances where a corroborative witness was asked to leave the room and where material factors of significance to the applicant’s ability to participate in the hearing were not taken into account.
In regards to the adjournment application, the applicant’s advisor formally requested an adjournment before the hearing:
a)On 1 November 2013, the applicant received an invitation to appear before the Tribunal (CB 160-161);
b)On 15 November 2013, the applicant’s advisor advised the Tribunal that he had not yet met with the applicant, that he was arranging some corroborative material to be sent from overseas, that he was making arrangements for his wife to give evidence from overseas (CB 162);
c)On 20 November 2013, the applicant’s advisor advised the Tribunal that his preparation for the case had been delayed due to his mother’s illness (CB 163); and
d)On 20 November 2013 by email the applicant’s advisor advised the Tribunal that his mother had been diagnosed with cancer, provide evidence in the way of an e-Discharge and requested an adjournment (CB 164).
This request was not dealt with until the commencement of the hearing.
It was dealt with in the following terms, as stated by the Tribunal:
I did consider your request I think at the end of the day this is a detention case. If you want to make oral submissions at the end or you want to have further time for written submissions then that’s fine. We can talk about that. But my hearings, my schedule is quite booked up sometime in advance. I am quite booked up given that this is a detention case was reluctant to delay it any further.
The applicant submits that a refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case. The applicant submits that the reasoning of her Honour Gordon J in Mijac Investments Pty Ltd v Graham [2009] FCA 303 at [23] is prescient, where she stated:
The refusal of an adjournment may amount to a denial of procedural fairness if it is likely to deny a party a reasonable opportunity to present his or her case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] per Gaudron and Gummow JJ (Bhardwaj); Touma v Saparas [2000] NSWCA 11 at [27]). The procedure that will satisfy the demands of procedural fairness may differ in order “to meet the particular exigencies of the case” (Kioa v West (1985) 159 CLR 550 at 615 per Brennan J). As I stated in Ali v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 41 AAR 410 at [27]:
Ultimately, each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted is a matter within the discretion of the trial Judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances [citation omitted].
In the instant matter, the Tribunal appears to have given determinative weight to the fact of the applicant being in detention. One clear implication of this mode of reasoning is to deny applicants in detention the same ability to give evidence and present arguments as those not in detention. This mode of reasoning challenges settled principles of equality before the law: see s.10 of the Racial Discrimination Act 1975 (Cth).
The Tribunal Member, however, made no reference to the issues raised by the advisor – including the availability of witnesses and his lack of preparation. These are factors simply not taken into account by provision for written submissions to be provided at a later date. Further, it is demonstrative of the proposition that the Tribunal Member failed to consider the application for an adjournment judicially.
Certainly, this decision had material bearing on the Tribunal’s decision to exclude a witness from the hearing. The Tribunal did not inquire as to the identity of the witness. The failure by the applicant’s advisor to object to the exclusion of the witness or to ask that she could return to the room later in the hearing should be viewed in this context.
The female witness present during the hearing – the sister of the applicant – had intended to provide further corroborative evidence.
At the commencement of the hearing, the Tribunal stated:
The first thing I’m going to do, Madam, I’m going to get you to wait outside, thank you very much.
Important issues were raised about correspondence concerning the sister (see Transcript at p.12). However, there was no request for the sister to return to the room. There was no offer made for the applicant to lead further witnesses.
The next issue concerns the failure to take into account evidence in the form of a psychological report regarding the mental state of the applicant. This poses significant issues in relation to the applicant’s ability to given evidence and present arguments.
The applicant submits that the Tribunal's treatment of this evidence, it dealt with only in regards to his credit and not in regards to his ability to participate in the hearing, discloses jurisdictional error: see WAIJ v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [26]-[30] and [49]-[52]. Lee and Moore JJ stated at [26]-[27] therein:
26 The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents “do not overcome the problems I have with the applicant’s evidence".
27 Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claim that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).
The applicant submits that s.425 should be interpreted in light of the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. In SCAR (supra), the applicant gave evidence to the Tribunal in a vague and confused manner. Unbeknown to the Tribunal, the applicant had recently received news of his father’s death and in the opinion of a psychologist was “in no condition to handle [the interview by the Tribunal]”. This Court said at [33], [37]:
33. Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 64 ALD 395 at [31].
...
37. On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; (2003) 128 FCR 359. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; (2002) 121 FCR 100. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; (2002) 122 FCR 322; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
In the case before them, they concluded that the refugee claimant "did not receive the fair hearing required by the Act", because the Tribunal had assessed the applicant’s credibility adversely by reference to his vague responses, without taking into account the possible explanation given by the psychologist. At [37], they said "the statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation". They included in the circumstances where a breach of s.425(1) would occur "where the fact or event resulting in unfairness was not realised by the Tribunal".
The applicant submits that the present case falls within the principles and circumstances found in SCAR. As stated by Smith FM in SZIWY v Minster for Immigration and Citizenship & Anor [2007] FMCA 1641 at [33], the applicant’s capacities as a witness were materially affected by mental impairments at the hearing, and that these were not taken into account by the Tribunal before concluding that the applicant was not "a witness of truth". This resulted in an unfairness, which establishes a breach of the Tribunal’s obligations under s.425(1). Further, the essential unfairness in this case, as in SCAR, arose from the Tribunal’s assessment of the applicant’s evidence given at the hearing as if he were a person without impairment: SZIWY (supra) at [34].
In the instant matter, the psychological material was simply not considered – including the symptoms of depression, Post Traumatic Stress Disorder (“PTSD”) and its related symptomatology. Nor was evidence of his limited intellectual capacity.
Like in SZIWY, the applicant submits that jurisdictional error was attended upon the decision in two ways:
a)Substantively, the failure contributed to an unfair process of assessment of the applicant’s evidence given at his hearing. The failure therefore supports the conclusion that a breach of s.425(1) occurred; and
b)Procedurally, the Tribunal failed to consider whether to investigate the issue of the applicant’s mental capacities, and, in particular whether to investigate with the psychologist directly whether his opinion would be altered in the event that the applicant was not a witness of truth, before reaching conclusions on the applicant’s evidence and completing its review.
Again, the fact of the advisor being ill-prepared during the hearing has significance. As stated in SZIWY at [40]:
40. In the present case, the Tribunal made no inquiries into the concerns of the applicant’s solicitor, even obviously reasonable and readily available inquiries as to the medical records held by the Department of Immigration. It disregarded the issue of impairment raised before it, and proceeded to assess the applicant’s evidence unaided by any assessment of her possible impairments. In my opinion, this has resulted in jurisdictional error which vitiated its decision to affirm the delegate’s decision.
The applicant was asked at length about the actions of his sister. He had provided an explanation of his own limitations in explaining these issues. It is now an objective fact that she was not in the room during the hearing.
The applicant submits in the circumstances, the instant matter has not turned on “facts” as such but rather from inferences drawn from an incomplete reading of the merits of the case. This inference itself was drawn from an incomplete reading of the case.
As stated by the Full Court (their Honours Rares, Jagot and Flick JJ) in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223 at [25]:
25. The principles of procedural fairness require that persons whose interests may be adversely affected receive a fair hearing by the use of an appropriate procedure in the circumstances: SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 at 160 [25] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. There the Court said:
[W]hat is required by procedural fairness is a fair hearing, not a fair outcome’. As Brennan J said, in Attorney-General (NSW) v Quin [(1990) 170 CLR 1 at 35-36]:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
Their Honours went on at [26]-[27]:
26. The Courts have declined to be prescriptive as to the procedures a decision-maker must employ in order to provide procedural fairness in any particular case. This is because what will be both sufficient and necessary to ensure a fair hearing will depend on, and vary with, the context in which the decision-maker acts, including any statutory or regulatory requirements or considerations: 228 CLR at 160-161 [26], [29]: see too Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at 261 [19]- [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
27. An administrative decision-maker must determine whether particular information he or she has is credible, relevant and significant before arriving at a final decision: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at 96 [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then, ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information.
In the instant matter, the applicant was simply not provided an opportunity to deal with the issues posed by Tribunal. He was denied the opportunity to lead evidence in circumstances where the advisor was ill-prepared, where a corroborative witness was present and asked to leave the room, and where scanty attention was paid to his medical evidence.
In the circumstances, s.425 of the Migration Act has been breached.
The applicant submits the application should be granted.
Minister’s Submissions
The arguments raised in the applicant’s written submissions do not entirely correspond to the grounds in the amended application. It appears from the applicant’s submissions that the applicant will seek at the hearing to file a further amended application that pleads only one ground, similar to Ground 1 in the amended application, but adds further allegations that the Tribunal breached s.425 by:
a)Failing to grant an adjournment; and
b)Excluding a potential witness from the hearing.
Failure to grant an adjournment
Assuming that the Minister’s objection to the First Byers Affidavit is upheld, then there will be no evidence of the Tribunal’s adjournment decision, apart from [28] of the Decision Record (CB 283). Even if the irregular transcript is admitted into evidence, it does not transcribe the relevant portions of the hearing. The Applicant bears the onus of proof in these proceedings and has had ample opportunity to collect and serve evidence. In the absence of evidence, particular (a) of the sole ground of the proposed further amended application should be dismissed.
In any case, there is no error of law (in the sense meant in House v R (1936) 55 CLR 499 at 504-505) in the Tribunal exercising its discretion in order to hear the applications of detainees expeditiously, especially where opportunity was provided to the applicant to make further submissions in writing, and give further documentary evidence, after the hearing. There is nothing to suggest unreasonableness or irrationality of the sort discussed by the High Court in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332.
Alleged exclusion of a potential witness
Again, for the reasons given in [38] above, there is no evidence to support the allegations in particular (b) of ground 1 of proposed Further Amended Application that a witness was excluded. In any case, under s.426 of the Migration Act, there is no absolute obligation on the Tribunal to hear evidence from persons other than the applicant at a hearing – especially in circumstances where there is no evidence that the applicant gave the notice required under s.426(2). Consequently, the particular should be rejected.
Consideration of the Psychological Assessment
Particulars (c) and (d) of the sole ground of the proposed Further Amended Application appear to correspond to ground 1 of the Amended Application and relate to intellectual limitations or psychological difficulties allegedly suffered by the applicant.
It is clear that the Tribunal was aware of the applicant’s claim to suffer “intellectual limitations” (CB 287 at [55]). Moreover, the applicant concedes that the Tribunal was aware of the Psychological Assessment and took it into account in regards to its assessment of his credit: see [23] above.
The applicant’s argument that the Tribunal should have taken the Psychological Assessment into account in considering whether to adjourn the hearing is at odds with the fact that the Tribunal did not receive the report until almost a month after the hearing (CB 232, 246). Moreover, for the reasons given above, there is no evidence regarding the circumstances of the adjournment decision aside from [27] of the Tribunal’s Decision Record (CB 283).
In any case, despite referring to the applicant as exhibiting some of the features of depression, anxiety and PTSD, the Psychological Assessment specifically declines to diagnose him as suffering from any of these conditions (CB 258-259).
For these reasons, particulars (c) and (d) of the sole ground of the proposed further amended application (and/or Ground 1 of the amended application) should be rejected.
Consideration of the Red Cross Letter
From the applicant’s written submissions it appears that he has abandoned Ground 2 of the amended application, which concerns an alleged failure to properly consider the Red Cross letter. If so, this concession is properly made, as it is clear that the Tribunal did indeed consider the letter: see CB 267-269 at [6]-[8].
Supplementary Submissions
At the hearing of this matter on 15 July 2014, the Court gave the Minister the opportunity to file supplementary written submissions citing authority for a proposition he raised in argument, where the names or citations of the relevant cases had escaped his memory.
The proposition is that, for a decision to be vitiated by a failure to abide by the hearing rule of procedural fairness, it is necessary for an applicant to show what he or she might have done differently, such as what new or different evidence or arguments he or she might have presented, had the rule been obeyed – and, where the precise nature of this lost opportunity is not obvious, this is ordinarily proven by affidavit (or other evidence) from the applicant: Re Minister for Immigration and Multicultural Affairs; Ex parte A (2001) 185 ALR 489 at [54] per Kirby J; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [72]-[75] (McHugh, Gummow, Callinan and Heydon JJ) (note that Ex parte A at [54] is cited with approval in NAFF at [75]).
That proposition is a corollary of the more general proposition that, for the Court to have jurisdiction to grant the constitutional writs, it must be shown that the alleged error could possibly have affected the decision: Lansen & Ors v Minister for Environment and Heritage & Anor (2008) 174 FCR 14 at [90]-[125] (especially [124]) (per Moore and Lander JJ) and [299]-[307] (per Tamberlin J) and the authorities discussed there.
Conclusion
The application should be dismissed with costs.
Consideration
I first turn to the attempted filing of the two affidavits by the applicant containing portions of the Transcript of the Tribunal hearing. Having regard to the contents therein, noting the objections raised by the Minister, I propose to allow them to be filed and read. There is no issue in this matter relating to the standard or quality of interpretation. Further, the Minister does not dispute the veracity of the transcripts, rather the way in which they were prepared, who prepared them and when they were filed. The prejudice to the Minister is not of a level significant enough to warrant further consideration.
The sole ground of review is pleaded on three bases.
I will first address particular (a) of the ground of review. The applicant asserts that the Tribunal’s refusal to adjourn the applicant’s hearing denied the applicant procedural fairness as it denied him a reasonable opportunity to present his case.
Section 425 of the Migration Act states:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 his Honour French J stated at [5]:
5. In their joint judgment dismissing the Minister’s appeal to the Full Court of the Federal Court, Greenwood and Logan JJ correctly described the review function conferred on the MRT as its “core function” and said:
The MRT is given power to adjourn proceedings from time to time … An unreasonable refusal of an adjournment of the proceeding will not just deny a meaningful appearance to an applicant. It will mean that the MRT has not discharged its core statutory function of reviewing the decision. This failure constitutes jurisdictional error for the purposes of s 75(v) of the Constitution. (emphasis in original)
I note these comments were made in respect of the Migration Review Tribunal, however, the provisions of s.360 of the Migration Act are in the same form as s.425.
In House v R (supra) at 504-505 their Honours Dixon, Evatt and McTiernan JJ stated at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In the current proceedings, the applicant’s contention that the Tribunal denied the applicant procedural fairness by refusing him an adjournment of the hearing is pressed on the following bases:
a)The applicant, on 1 November 2013, received an invitation to appear before the Tribunal on 4 December 2013 (CB 160-161);
b)On 15 November the applicant’s adviser informed the Tribunal by telephone he had not yet met with the applicant, that he was attempting to make arrangements for corroborative material to be sent from overseas as well as arranging for the applicant’s wife to give evidence from overseas and sought an adjournment orally (CB 162);
c)On 20 November 2013, the applicant’s adviser indicated to the Tribunal his mother had been diagnosed with cancer and requested an adjournment (CB 163-164); and
d)The Tribunal failed to consider a psychological report in respect of the mental state of the applicant (CB 246-261).
The Tribunal wrote to the applicant on 20 November 2013 to inform him it had considered his adjournment application, but refused it (CB 166-167).
The applicant, though his agent, then returned the Response to Hearing Invitation Form, indicating he and the applicant would appear, but no witnesses would (CB 168-169).
At the Tribunal hearing, the Tribunal Member stated to the applicant immediately after commencing the hearing, swearing in the interpreter and confirming the applicant’s identity:
Member: I did consider your request [for an adjournment]. I think at the end of the day this is a detention case, if you want to make oral submissions at the end or you want to have further time for written submissions then that’s fine. We can talk about that. But my hearings, my schedule is quite booked up sometime in advance. I am quite booked up given that this is a detention case [and am] reluctant to delay it any further.
…
Member: [Mr SZTVU] I was just talking to your advisor about the fact that I wanted to talk to you today and I didn’t want to delay this hearing. I have also indicated to your advisor that if he wants to make written submissions after the hearing, if he thinks that’s important he may like to do that. I will give him time to do that. …
(Affidavit of M. Byers affirmed 15 July 2014 at Annexure “A”)
The Tribunal stated in its Decision Record at [28]:
28. The Tribunal indicated to the adviser that although it had considered the request for an adjournment, the applicant was in detention and accordingly, the Tribunal had decided to proceed with the hearing.
(CB 283)
As submitted by the Minister with reference to Plaintiff M61/2010E v Commonwealth & Ors (2010) 243 CLR 319, an applicant being in detention is a relevant consideration when dealing with an adjournment application. It is common practice in migration matters before the various migration tribunals, this Court and the superior Courts that matters where an applicant (or respondent) is in detention are dealt with on a priority basis. To the extent that the Tribunal relied on the fact the applicant was in detention in reaching its decision not to grant the applicant an adjournment, no error is apparent.
It is not disputed that the Tribunal invited the applicant to prepare written submissions before the hearing, however, this did not occur. It is also apparent that, in order to overcome this, the Tribunal Member stated the applicant would be able to file submissions after the hearing. I accept the Minister’s submission that the applicant has not demonstrated what, if any, prejudice may have befallen the applicant by the Tribunal adopting this course. Accordingly, in this respect, I am of the view this raises no error.
I now turn to the issue of the psychological report found at CB 246-261. This was submitted to the Tribunal on 2 January 2014, which occurred after the hearing on 4 December 2013. Accordingly, in respect of any adjournment application made before or at the Tribunal hearing, this evidence was not before the Tribunal when it made its decision not to grant the applicant an adjournment. No error is revealed.
I accept the Minister’s submission that, for a decision to be vitiated by a failure to abide by the hearing rule of procedural fairness, it is necessary for an applicant to show what he or she might have done differently, such as what new or different evidence or arguments he or she might have presented, had the rule been obeyed. Further, where the precise nature of this lost opportunity is not obvious, this is ordinarily proved by affidavit (or other evidence) from the applicant: see Minister for Immigration and Multicultural Affairs, Re; Ex parte 'A' (2001) 185 ALR 489 at [54] per Kirby J; NAFF (supra) at [72]-[75] per McHugh, Gummow, Callinan and Heydon JJ).
Accordingly, particular (a) of Ground 1 of the application should be dismissed for the reasons above.
I now turn to particular (c) of the application. This particular alleges that the psychological report prepared in respect of the applicant (CB 246-261) was only considered in respect of the applicant’s general credibility and not in respect of its bearing on the applicant’s ability to participate in the hearing.
Relevantly, the psychological assessment (along with other documents) was attached to written submissions sent to the Tribunal by the applicant’s adviser on 2 January 2014 (CB 232-261). The following statement was contained therein:
3. Question: Whether the Applicant was arrested in 2011
Answer: Consistent with the evidence he provided at the PV interview on 17 May 2013 the Applicant claimed at the Hearing that he was arrested by the EPDP and tortured and detained for a week. Resulting from this arrest and the assault and torture that the Applicant experienced, he mentioned that he was experience back and leg since 2011 at the PV Interview on 17 May 2013. In support of this fact his wife has sent through a letter from his doctor who treated him (see attached letter from Dr. Leon Pusparany)
The Applicant claimed to have said this in Tamil when his statement of claim dated 26 April 2013 was prepared. However, it appears to have been lost in translation and therefore, I note that there is a bit of inconsistency between the Statement of Claim dated 26 April 2013 and his evidences at the PV Interview and the Hearing.
In response to my question as to why he did not correct me when I was reading through the statement the Applicant said that he lost his concentration and also, he claims that day he had an anxiety attack and was not able to explain to me when I visited him in the Detention Camp. Having observed his personality for a period of time I do not doubt that the Applicant is telling the truth (see attached Psychological Report).
As submitted by the applicant, the psychological report declines to make a diagnosis depression, anxiety or post-traumatic stress disorder (CB 258) after the relevant testing of the applicant. This, however, was qualified by the psychologist’s statement that:
[I]t should be noted that the scores on the two instruments appear contrary to [SZTVU’s] presentation and reported trauma history. [SZTVU’s] tendency to underreport and deny his true feelings and symptoms could be the result of an attempt to present that he is coping adequately, or the result of a defensive coping strategy characterised by denial and disassociation.
It is not stated in the psychological report that the assessor was of the view that the applicant was unable to meaningfully participate in the hearing. As submitted by the Minister, symptoms of the nature of those presented by the applicant would be consistent with many other Protection visa applicants before the Tribunal.
The Tribunal stated at [8] of the Decision Record:
8. …Whilst the Tribunal has considered the psychological assessment report dated 28 June 2013, which states that the applicant presented with features of depression, post-traumatic stress disorder and anxiety, this does not mean that the applicant was arrested in 2011. The Tribunal does not accept that a second arrest, is insignificant or that the applicant would not have mentioned it in April 2013 if this had occurred. Whilst the applicant stated at the hearing that he did not do so because of his excitement and the adviser has subsequently stated he said he lost his concentration and had an anxiety attack, the rest of the statement is detailed, coherent and does not suggest that the applicant had difficulty recounting other alleged instances such as his first arrest. The Tribunal has concluded that the changing of the applicant’s evidence is such that it does not accept he was arrested in 2011.
The applicant’s adviser submitted the psychological report in response to a s.424A letter from the Tribunal asking why the applicant had failed to mention in his statement he had been arrested for a second time in 2013, but had mentioned this at the hearing. Having regard to the Tribunal’s findings, it is clear this report was considered in this respect.
However, the psychological report does not state that the applicant was not able to meaningfully participate in the hearing. Rather, it suggests the applicant would benefit from counselling support.
The psychological report was submitted to the Tribunal by the applicant’s adviser in support of his submissions in respect of inconsistencies in his evidence. There was no suggestion from the adviser that the report showed the applicant was unable to meaningfully participate in the hearing, nor was there anything arising from the contents of the report to support such a claim.
Accordingly, I am not satisfied this particular can be sustained. It should be dismissed.
Particular (d) of the application claims there was no regard by the Tribunal to the evidence led by the applicant’s adviser stating the applicant had intellectual limitations.
At [55] of the Decision Record, the Tribunal stated:
55. [The applicant’s adviser] stated the applicant had intellectual limitations.
This particular also places its reliance on the psychological report submitted by the applicant’s adviser on 2 January 2014. However, for the reasons stated above, I am not satisfied this claim can be sustained. The Tribunal noted the evidence led by the applicant’s adviser. As noted in respect of particular (c), it also considered the psychological report. I am not satisfied that a claim the Tribunal failed to consider evidence led by the applicant’s adviser that the applicant had intellectual limitations can be sustained.
Further, it can be seen at [29] of the Decision Record (CB 283) that the Tribunal endeavoured to ensure the applicant understood all the questions being asked of him. The applicant agreed with this proposition. He was also advised to tell the Tribunal if he did not understand anything, however, nothing in this respect arises.
Accordingly, this particular cannot be sustained and should be dismissed.
The WZAPN Issue
This matter came before the Court for hearing on 15 July 2014. Judgment was reserved. Consequently, as other proceedings addressing this specific issue had requested the reserved judgment not be finalised until the High Court decision was known, I have adopted that approach for this current matter.
On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 per North J.
On 1 October 2014, the Minister filed in the High Court of Australia an Application for Special Leave to Appeal from the judgment of North J in WZAPN (supra).
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court: see Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22. It also unanimously dismissed an appeal from the Federal Court which was WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Migration Act.
Conclusion
I have read the contents of the Court Book and, particularly, the Decision Record. On a fair reading thereof, no jurisdictional error on the part of the Tribunal is apparent. Accordingly, as the pleaded ground in the application or submissions made by the applicant cannot be sustained, the application should be dismissed with costs awarded to the Minister.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
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